David L. Hornick v. Eric K. Shinseki

UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS
NO . 08-3221
DAVID L. HORNICK, APPELLANT ,
v.
ERIC K. SHINSEKI,
SECRETARY OF VETERANS AFFAIRS, APPELLEE .
On Appeal from the Board of Veterans' Appeals
(Argued May 26, 2010 Decided August 20, 2010)
Michael P. Horan, of Washington, D.C., for the appellant.
Yvette R. White, with whom Will A. Gunn, General Counsel; R. Randall Campbell, Assistant
General Counsel; and Edward V. Cassidy, Jr., Deputy Assistant General Counsel, were on the brief,
all of Washington, D.C., for the appellee.
Before GREENE, HAGEL, and MOORMAN, Judges.
GREENE, Judge: Veteran David L. Hornick appeals, through counsel, a September 15,
2008, decision of the Board of Veterans' Appeals (Board) that determined that it was proper for a
VA regional office (RO) to sever his May 1996 award of VA compensation benefits under 38 U.S.C.
§ 1151. Mr. Hornick seeks reversal, arguing, inter alia, that VA erred in severing his award of section
1151 compensation benefits because, under 38 U.S.C. § 1159, that award was protected because it had
been in force for more than ten years. The Secretary responds that the Board was bound by General
Counsel Precedent Opinion 13-96 [hereinafter G.C. Prec. 13-96], which determined that the section
1159 protection of service connection does not extend to protect disabilities compensated under section
1151. For the reasons set forth below, we will reverse the September 2008 Board decision and remand
the matter for proceedings consistent with this opinion.
I. BACKGROUND
In May 1996, the RO awarded Mr. Hornick section 1151 compensation benefits for residuals
of a low-back injury, effective September 16, 1994. R. at 739-40. The decision reflects that on
March 15, 1991, Mr. Hornick was injured while "sitting at the VA Medical Center [(VAMC)]" when
the bench that he was sitting on "broke causing him to be caught in the wrought iron frame with split
wood around his body." R. at 739. At that time, the RO determined that Mr. Hornick's residuals of
a low-back injury "resulted from VA hospitalization, medical, or surgical treatment." Id. It is not
disputed that the injury occurred while the veteran was waiting outside of the dental clinic at the
Indianapolis, Indiana, VAMC.
In February 1997, the RO found Mr. Hornick to be totally disabled as a result of his
March 1991 low-back injury and increased his disability rating from 40% to 100%, effective
September 16, 1994. R. at 639. The RO also awarded him special monthly compensation (SMC)
benefits "based on paralysis of both lower extremities [and] loss of bowel and bladder control,"
effective September 16, 1994. R. at 642.
In November 2005, the RO proposed to sever Mr. Hornick's section 1151 benefits. R. at 334-
39. The RO noted that Mr. Hornick's March 1991 injury was incurred while he was "outside the VA
Dental Clinic" and thus determined that "[a] clear and unmistakable error [(CUE)] was made" in
awarding him section 1151 compensation benefits "based on an injury which did not result from
examination or hospital care or treatment." R. at 337 (citing Sweitzer v. Brown, 5 Vet.App. 503(1993)). In January 2006, VA notified Mr. Hornick that his award of VA compensation under
section 1151 was severed because there was CUE in the decision granting entitlement to that benefit.
R. at 317-20. Mr. Hornick appealed that decision to the Board and, in September 2008, the Board
determined that the RO properly severed Mr. Hornick's section 1151 benefits. As part of its
decision, the Board considered the applicability of 38 U.S.C. § 1159, which provides that "[s]ervice
connection for any disability . . . which has been in force for ten or more years shall not be
severed . . . except upon a showing that the original grant of service connection was based on fraud."
38 U.S.C. § 1159. The Board, relying on G.C. Prec. 13-96, found that the section 1159 protection
did not extend to awards of compensation benefits under section 1151 and, therefore, the RO was
not procedurally prohibited from severing Mr. Hornick's section 1151 compensation benefits.
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II. APPLICABLE LAW AND ANALYSIS
A. Statutory Scheme
"As in all statutory construction cases, we begin with the language of the statute." Barnhart
v. Sigmon Coal Co., Inc., 534 U.S. 438, 450 (2002). The meaning of a statutory word or phrase
cannot be determined in isolation, but must be drawn from the context in which it is used. See
Holloway v. United States, 526 U.S. 1, 6 (1999) ("In interpreting the statute at issue, '[w]e consider
not only the bare meaning' of the critical word or phrase 'but also its placement and purpose in the
statutory scheme.'") (quoting Bailey v. United States, 516 U.S. 137, 145 (1995)); King v. St. Vincent's
Hosp., 502 U.S. 215, 221 (1991) (finding no limit on length of military service after which a member
of the Armed Services might retain a right to re-employment, where it could be inferred that no such
limit was implied from other provisions in the same statute that contained such limits) (citations
omitted). Thus, the plain meaning of any statutory provision must be determined in light of the
statutory scheme as a whole, the specific context in which the word or provision at issue is used, and
the broader context of the statute as a whole. Kokoszka v. Belford, 417 U.S. 642, 650 (1974) ("When
'interpreting a statute, the court will not look merely to a particular clause in which general words
may be used, but will take in connection with it the whole statutes (or statutes on the same subject)
and the objects and policy of the law, as indicated by its various provisions, and give to it such a
construction as will carry into execution the will of the Legislature.'" (quoting Brown v. Duchesne,
60 U.S. 183, 194 (1857))).
"Chapter 11 of title 38, U.S. Code, governs claims for compensation by veterans for their
service-connected disabilities." DeBeaord v. Principi, 18 Vet.App. 357, 363 (2004). "The basic
purpose of the chapter 11 compensation provisions is to recompense veterans for conditions that are
a result of or arise during their service." Id. at 364; see 38 U.S.C. § 1110 ("For disability resulting
from personal injury suffered or disease contracted in line of duty . . . the United States will pay to
any veteran thus disabled . . . compensation as provided in this subchapter."); 38 U.S.C. § 1131(providing same for peacetime service); VA Form 21-526 ("Veteran's Application for Compensation
and/or Pension").
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Both statutory provisions at issue in this appeal–38 U.S.C. §§ 1151 and 1159–are contained
within subchapter VI of chapter 11, entitled "General Compensation Provisions." At the time Mr.
Hornick was awarded compensation under section 1151, that statute provided:
Where any veteran shall have suffered an injury, or an aggravation of an injury, as the
result of hospitalization, medical or surgical treatment, or the pursuit of a course of
vocational rehabilitation under chapter 31 of this title, awarded under any of the laws
administered by the Secretary, or as a result of having submitted to an examination
under any such law, and not the result of such veteran's own willful misconduct, and
such injury or aggravation results in additional disability to or the death of such
veteran, disability or death compensation under this chapter and dependency and
indemnity compensation under chapter 13 of this title shall be awarded in the same
manner as if such disability, aggravation, or death were service-connected.
38 U.S.C. § 1151 (emphasis added). Section 1159 provides, in pertinent part, that:
Service connection for any disability or death granted under this title which has been
in force for ten or more years shall not be severed on or after January 1, 1962, except
upon a showing that the original grant of service connection was based on fraud or
it is clearly shown from military records that the person concerned did not have the
requisite service or character of discharge.
38 U.S.C. § 1159.
B. Standard of Review
Precedent opinions "constitute a body of experience and informed judgment" on the part of
VA. Osman v. Peake, 22 Vet.App. 252, 256 (2008); see Skidmore v. Swift, 323 U.S. 134, 140
(1944). Therefore, the Board is "bound in its decisions by the . . . precedent opinions of the chief
legal officer of the Department." 38 U.S.C. § 7104(c). Although the Board is bound by the
precedent opinions issued by the VA General Counsel, this Court is not. Hatch v. Principi, 18
Vet.App. 527, 531 (2004); Sabonis v. Brown, 6 Vet.App. 426, 429 (1994). Therefore, the issue of
whether section 1159 applies to protect awards of compensation made under section 1151 is one of
first impression for the Court. See DeBeaord, supra (Court reviews VA's statutory interpretation de
novo). Our review is guided by the United States Supreme Court's mandate that, when interpreting
veterans benefits statutes, interpretive doubt is to be resolved in favor of the veteran. Brown v.
Gardner, 513 U.S. 115, 117-18 (1994). Finally, the degree to which an agency's interpretations of
ambiguous statutes are given deference "will depend upon the thoroughness evident in its
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consideration, the validity of its reasoning, . . . and all those factors which give it power to
persuade." Skidmore, 323 U.S. at 140.
Here, the agency interpretation of section 1159 was the basis for the Board's decision in this
matter; thus, the Court "must determine whether that interpretation," as set forth in G.C. Prec. 13-96,
"is a correct statement of relevant law." Osman v. Peake, 22 Vet.App. 252, 256 (2008). "A
rejection of the VA General Counsel opinion that the Board decision found determinative necessarily
requires the rejection of the Board decision itself." Id.C. VA General Counsel Precedent Opinion 13-96
In November 1996, the VA General Counsel issued a precedent opinion deciding the precise
question now before the Court: "Does the protection of service connection provided by 38 U.S.C.
§ 1159 apply to disabilities compensated under 38 U.S.C. § 1151." G.C. Prec. 13-96. The VA
General Counsel determined that the section 1159 protection of service connection is not applicable
to disabilities compensated under section 1151. The General Counsel reasoned that, because section
1159 neither authorizes awards of compensation nor prescribes the manner in which payments are
made, but rather pertains to the factual determination of service connection, section 1159 does not
protect compensation paid under section 1151.
D. 38 U.S.C. § 11511. Caselaw
The Court has had several opportunities to consider the question of what ancillary benefits
are available to veterans based on an award of compensation under section 1151. In Mintz v. Brown,
6 Vet.App. 277 (1994), the Court found that a widow of a veteran awarded section 1151
compensation was not entitled to Chapter 23 benefits for burial costs. The Court stated that "a
determination of 'as if' service connection under [section] 1151 may create entitlement to benefits
under chapters 11 and 13, but not to benefits under chapter 23." Id. at 283.
In Kilpatrick v. Principi, the Court found that a veteran awarded section 1151 compensation
was entitled to specially adapted housing and a special home adaption benefit under 38 U.S.C.
§ 2101(a). 16 Vet.App. 1, 6 (2002), aff'd, 327 F.3d 1375 (Fed. Cir. 2003). The Court distinguished
Mintz on the grounds that section 2101(a) authorized the Secretary "to assist any veteran who is
entitled to compensation under chapter 11" for a permanent and total service-connected disability,
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whereas section 2307 (the burial benefits statute at issue in Mintz) "awards benefits for 'a veteran
who dies as the result of service-connected disability.'" Id. at 5 (quoting 38 U.S.C. § 2307). The
Court found determinative the statutory eligibility criteria for the ancillary benefit the veteran was
seeking, noting that "by its very terms, section 1151 relates only to the award of compensation under
chapters 11 and 13." Id. On appeal, the U.S. Court of Appeals for the Federal Circuit (Federal
Circuit) affirmed this Court's decision, but rejected its reasoning that because Mr. Kilpatrick "was
entitled to compensation under chapter 11, and the chapter 11 compensation to which he was
entitled, pursuant to section 1151, was the same as that awarded to veterans with permanent and total
service-connected disabilities," he was therefore entitled to chapter 21 housing benefits. Kilpatrick,
327 F.3d at 1380. The Federal Circuit examined the legislative history of section 1151 and historical
background of section 2101(a) to conclude that Congress' intent had always been to make available
special adaptive housing benefits to veterans receiving section 1151 compensation benefits. Id. at
1383 ("[W]e interpret the 1957 Act to provide that veterans who were disabled by VA medical or
surgical procedures were entitled to specially adapted housing benefits because they were entitled
to the compensation that was provided under the Act for 'permanent and total service-connected
disability due to the loss, or loss of use . . . of both lower extremities.'").
In Alleman v. Principi, this Court considered whether a veteran qualified for chapter 19 life
insurance benefits based on his receipt of section 1151 compensation. 16 Vet.App. 253 (2002), aff'd,
349 F.3d 1368 (Fed. Cir. 2003). The Court determined that a veteran receiving section 1151
compensation was not eligible for Service Disabled Veterans' Insurance (SDVI) because 38 U.S.C.
§ 1922(a) requires that a veteran apply for the benefit "within two years of being awarded service
connection for a disability." Id. at 257. On appeal to the Federal Circuit, Mr. Alleman argued that
the definition of compensation set forth in 38 U.S.C. § 101(13) requires a finding of service
connection before any disability compensation may be made. The Federal Circuit rejected this
argument, stating that "[s]ection 1151 does not redefine 'service-connected,'" but rather "provides
an exception that grants compensation for some non-service-connected disabilities, treating those
disabilities for some purposes 'as if' they were service-connected.'" Alleman, 349 F.3d at 1370-71.
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2. Legislative History
From the cases dealing with section 1151, it is apparent that the legislative history is as
important as the statutory text when determining what ancillary benefits a veteran is entitled to once
an award of section 1151 compensation has been made. The legislative history of section 1151
reveals that the statute was first enacted as section 213 of the World War Veterans' Act of 1924, Pub.
L. No. 68-242, § 213, 43 Stat. 607, 623. It provided that the compensation benefits of title II of the
1924 Act would be awarded to those World War I veterans who were injured or whose existing
injuries were aggravated "as the result of training, hospitalization, or medical or surgical treatment."
Id. The benefits of title II were to be provided to section 213 veterans "in the same manner as though
such disability, aggravation, or death was the result of military service during the World War." Id.Testimony preceding the passage of the 1924 Act established the drafters' intent to compensate
disabled veterans who suffered a harm that was not service connected to ensure that veterans were
receiving all benefits to which they were entitled. See Hearings before the House Committee on
World War Veterans' Legislation, 68th Cong., 1st Sess. 113 (1924) ("If, in the course of vocational
training, the trainee is injured without fault of his own as a result of one of the occupational hazards
of the training, there is at present no authority to compensate him for that disability which, of course,
has no direct service connection.").
Section 213 of the 1924 Act was repealed in 1933 and replaced in 1934 by a similar statute
that applied to veterans generally, not solely veterans of World War I. See Pub. L. No. 73-141, § 31,
48 Stat. 509, 526 (1934). The new statute provided that specified compensation benefits would be
awarded to persons who suffered an injury or aggravation of an existing injury as the result of
training, hospitalization, or medical or surgical treatment provided pursuant to the veterans benefit
laws "in the same manner as if such disability, aggravation, or death were service connected within
the meaning of such laws." Id.E. Relationship between 38 U.S.C. §§ 1151 and 1159
Initially, we observe that an award of compensation under section 1151 is not an award of
service connection. As the Federal Circuit stated in Alleman, "[s]ection 1151 does not accord
service-connected status to a veteran's disability or death, but rather provides that in certain instances
a veteran's disability or death will be treated 'as if' it were service-connected for certain purposes."
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349 F.3d at 1370 (emphasis added). Mr. Hornick similarly recognizes that the award of section 1151
benefits does not bestow upon him service-connected status; he asserts, however, that because
section 1151 requires VA to treat disabilities compensated under that section "as if" they were
service connected, section 1159 prevents VA from severing that award of benefits once it has been
in place for a period of 10 years. Mr. Hornick argues that "Congress' use in § 1151 of the statutorily
defined term 'service-connected' . . . . manifested a clear intent to provide § 1151 disabled veterans
with the very same legal protection that are available to service-connected veterans." Appellant's
Brief at 24.
As stated above, section 1159 protects determinations of service connection that have been
in effect for 10 years or more. In enacting the provisions currently codified in section 1159,
Congress explained that the legislation "merely freezes the determination of service connection, that
is to say the finding by the Veterans' Administration that the disability was incurred in or aggravated
by military service." S. Rep. No. 1394, 86th Cong., 2d Sess. 1 (1960), reprinted in 1960
U.S.C.C.A.N. 2238. Congress noted that the statute "does not freeze the percentage rating which
represents the degree of the disability and governs the amount of compensation payable therefor."
Id. At the time of the enactment of section 1159, section 1151 was in effect.
On its face, the use of the term "service connection" in section 1159 would seem, upon
preliminary review, to exclude section 1151 compensation recipients from its protection, because
that statute provides only compensation, not service connection. But, through its language, Congress
has clearly stated its intent that beneficiaries of section 1151 compensation are to have their
disabilities treated "as if" they were service connected. Because both section 1111 and 1159 are
contained in title 38 under the subchapter dealing with general compensation provisions, it would
violate proper statutory construction to conclude that these sections are not part of a harmonious
whole and that thus the protection afforded by section 1159 would not apply to those individuals
receiving section 1151 compensation benefits. See Meeks v. West, 12 Vet.App. 352, 354 (1999)
("'[E]ach part or section [of a statute] should be construed in connection with every other part or
section so as to produce a harmonious whole.'" (quoting 2A N. SINGER, SUTHERLAND ON
STATUTORY CONSTRUCTION § 46.05 (5th ed. 1992))). To conclude otherwise would be inconsistent
with the statutory scheme of chapter 11, the purpose of which is to provide disabled veterans with
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compensation and, under certain circumstances, to protect the basis for that compensation. See
DeBeaord, supra. Moreover, as the Supreme Court held in Gardner, if a statute is ambiguous,
"interpretive doubt is to be resolved in the veteran's favor." Gardner, 513 U.S. at 118.
Further, as originally introduced, House Bill 113, which led to the present-day section 1159,
provided that "a service connection which has been made for compensation, pension, or insurance
purposes under law administered by the Veterans' Administration, and which has been in force for
ten or more years, shall not be severed thereafter unless on a showing that the rating originally
granting service connection was based on fraud." Hearings on the bill were held before the
Subcommittee on Compensation and Pension and comments made during those hearings prompted
the revision of House Bill 113 and enactment of the statute as it reads today. VA noted its objection
to the original text of the bill, stating that the use of the word "compensation" raises a question
"whether the bill would apply to 'dependency and indemnity compensation.'" Letter from Deputy
Administrator Bradford Morse to Chairman Olin Teague (July 24, 1959), reprinted in H.R. Rep. No.
1529, 86th Cong., 2d Sess. (1960). VA also objected to the inclusion of pension in the statute
because "[s]ervice connection is not relevant to the payment of non-service-connected disability
pension to war veterans or of non-service-connected death pension to widows and children of
veterans of World War I and prior years." Id. Finally, VA noted that the bill erroneously "assumes
that there is a basic relationship between service connection and the benefit of insurance." Id.Nothing in these statements indicates that the text of the statute as originally introduced,
which suggests that the purpose of the statute was to protect the payment of compensation that
veterans had come to rely upon, was revised to exclude beneficiaries of section 1151 compensation
from the protection of section 1159. Thus, we hold that the section 1159 protection from severance
of awards of "service connection" in effect for 10 or more years also extends to awards of
compensation under section 1151 that have been in effect for 10 or more years. We conclude that
this holding is in harmony with the statutory scheme and the general purposes of chapter 11 and of
title 38.1 Accordingly, for the reasons stated above, we reject G.C. Prec. 13-96, which determined
1
In keeping with the statutory scheme, VA compensation benefits awarded under 38 U.S.C. § 1151 still may be severed
under 38 U.S.C. § 1159 if it is shown that "the original grant was based on fraud or it is clearly shown from military
records that the person concerned did not have the requisite service or character of discharge." 38 U.S.C. § 1159.
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that the section 1159 protection does not apply to awards of compensation under section 1151.
Consequently, we reverse the Board's decision that relied on that opinion and remand the matter for
action consistent with this opinion.2 See Hensley v. West, 212 F.3d 1255, 1263 (Fed. Cir. 2000)
(holding that Court may reverse an incorrect judgment of law that is based upon proper factual
findings, provided that it does "'not simply [make] factual findings on its own.'") (quoting Icicle
Seafoods, Inc. v. Worthington, 475 U.S. 709, 714 (1986)).
III. CONCLUSION
Upon consideration of the foregoing analysis, the record on appeal, and the parties' pleadings,
the September 15, 2008, Board decision is REVERSED and the matter is REMANDED for the
Board to reinstate Mr. Hornick's section 1151 compensation benefits and any other awards flowing
therefrom.
2
W e note, of course, that the Board was bound by the VA General Counsel's opinion in reaching its decision.
See 38 U.S.C. § 7104(c). The Board's decision, however, is erroneous because the General Counsel's opinion misstates
the law.
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